§ 1292. The propriety of investing the national government
with authority to punish the crime of treason against
the United States could never become a question with any
persons, who deemed the national government worthy of
creation, or preservation. If the power had not been expressly
granted, it must have been implied, unless all the
powers of the national government might be put at defiance,
and prostrated with impunity. Two motives, probably,
concurred in introducing it, as an express power. One
was, not to leave it open to implication, whether it was to
be exclusively punishable with death according to the
known rule of the common law, and with the barbarous
accompaniments pointed out by it; but to confide the punishment
to the discretion of congress. The other was, to
impose some limitation upon the nature and extent of the
punishment, so that it should not work corruption of
blood or forfeiture beyond the life of the offender.

. . . . .

§ 1294. It is well known, that corruption of blood, and
forfeiture of the estate of the offender followed, as a necessary
consequence at the common law, upon every attainder
of treason. By corruption of blood all inheritable qualities
are destroyed; so, that an attainted person can neither
inherit lands, nor other hereditaments from his ancestors,
nor retain those, he is already in possession of, nor transmit
them to any heir. And this destruction of all inheritable
qualities is so complete, that it obstructs all descents
to his posterity, whenever they are obliged to derive a title
through him to any estate of a remoter ancestor. So, that
if a father commits treason, and is attainted, and suffers
death, and then the grandfather dies, his grandson cannot
inherit any estate from his grandfather; for he must claim
through his father, who could convey to him no inheritable
blood. Thus the innocent are made the victims of a
guilt, in which they did not, and perhaps could not, participate;
and the sin is visited upon remote generations. In
addition to this most grievous disability, the person attainted
forfeits, by the common law, all his lands, and tenements,
and rights of entry, and rights of profits in lands
or tenements, which he possesses. And this forfeiture relates
back to the time of the treason committed, so as to
avoid all intermediate sales and incumbrances; and he also
forfeits all his goods and chattels from the time of his conviction.

§ 1295. The reason commonly assigned for these severe
punishments, beyond the mere forfeiture of the life of the
party attainted, are these: By committing treason the party
has broken his original bond of allegiance, and forfeited
his social rights. Among these social rights, that of transmitting
property to others is deemed one of the chief and
most valuable. Moreover, such forfeitures, whereby the
posterity of the offender must suffer, as well as himself,
will help to restrain a man, not only by the sense of his
duty, and dread of personal punishment, but also by his
passions and natural affections; and will interest every dependent
and relation, he has, to keep him from offending.
But this view of the subject is wholly unsatisfactory. It
looks only to the offender himself, and is regardless of his
innocent posterity. It really operates, as a posthumous
punishment upon them; and compels them to bear, not
only the disgrace naturally attendant upon such flagitious
crimes; but takes from them the common rights and privileges
enjoyed by all other citizens, where they are wholly
innocent, and however remote they may be in the lineage
from the first offender. It surely is enough for society to
take the life of the offender, as a just punishment of his
crime, without taking from his offspring and relatives that
property, which may be the only means of saving them
from poverty and ruin. It is bad policy too; for it cuts off
all the attachments, which these unfortunate victims might
otherwise feel for their own government, and prepares
them to engage in any other service, by which their supposed
injuries may be redressed, or their hereditary
hatred gratified. Upon these and similar grounds, it may
be presumed, that the clause was first introduced into the
original draft of the constitution; and, after some amendments,
it was adopted without any apparent resistance. By
the laws since passed by congress, it is declared, that no [Volume 4, Page 468]
conviction or judgment, for any capital or other offences,
shall work corruption of blood, or any forfeiture of estate.
The history of other countries abundantly proves, that one
of the strong incentives to prosecute offences, as treason,
has been the chance of sharing in the plunder of the victims.
Rapacity has been thus stimulated to exert itself in
the service of the most corrupt tyranny; and tyranny has
been thus furnished with new opportunities of indulging
its malignity and revenge; of gratifying its envy of the rich,
and good; and of increasing its means to reward favourites,
and secure retainers for the worst deeds.

§ 1296. The power of punishing the crime of treason
against the United States is exclusive in congress; and the
trial of the offence belongs exclusively to the tribunals appointed
by them. A state cannot take cognizance, or punish
the offence; whatever it may do in relation to the offence
of treason, committed exclusively against itself, if
indeed any case can, under the constitution, exist, which is
not at the same time treason against the United States.

. . . . .

§ 1791. Treason is generally deemed the highest crime,
which can be committed in civil society, since its aim is an
overthrow of the government, and a public resistance by
force of its powers. Its tendency is to create universal danger
and alarm; and on this account it is peculiarly odious,
and often visited with the deepest public resentment. Even
a charge of this nature, made against an individual, is
deemed so opprobrious, that, whether just or unjust, it
subjects him to suspicion and hatred; and, in times of high
political excitement, acts of a very subordinate nature are
often, by popular prejudices, as well as by royal resentment,
magnified into this ruinous importance. It is, therefore,
of very great importance, that its true nature and
limits should be exactly ascertained; and Montesquieu was
so sensible of it, that he has not scrupled to declare, that
if the crime of treason be indeterminate, that alone is sufficient
to make any government degenerate into arbitrary
power. The history of England itself is full of melancholy
instruction on this subject. By the ancient common law it
was left very much to discretion to determine, what acts
were, and were not, treason; and the judges of those times,
holding office at the pleasure of the crown, became but too
often instruments in its hands of foul injustice. At the instance
of tyrannical princes they had abundant opportunities
to create constructive treasons; that is, by forced and
arbitrary constructions, to raise offences into the guilt and
punishment of treason, which were not suspected to be
such. The grievance of these constructive treasons was so
enormous, and so often weighed down the innocent, and
the patriotic, that it was found necessary, as early as the
reign of Edward the Third, for parliament to interfere,
and arrest it, by declaring and defining all the different
branches of treason. This statute has ever since remained
the pole star of English jurisprudence upon this subject.
And although, upon temporary emergencies, and in arbitrary
reigns, since that period, other treasons have been
created, the sober sense of the nation has generally abrogated
them, or reduced their power within narrow limits.

§ 1792. Nor have republics been exempt from violence
and tyranny of a similar character. The Federalist has
justly remarked, that newfangled, and artificial treasons
have been the great engines, by which violent factions, the
natural offspring of free governments, have usually
wreaked their alternate malignity on each other.

§ 1793. It was under the influence of these admonitions
furnished by history and human experience, that the convention
deemed it necessary to interpose an impassable
barrier against arbitrary constructions, either by the
courts, or by congress, upon the crime of treason. It confines
it to two species; first, the levying of war against the
United States; and secondly, adhering to their enemies,
giving them aid and comfort. In so doing, they have
adopted the very words of the Statute of Treason of Edward
the Third; and thus by implication, in order to cut
off at once all chances of arbitrary constructions, they have
recognized the well-settled interpretation of these phrases
in the administration of criminal law, which has prevailed
for ages.

§ 1794. Fortunately, hitherto but few cases have occurred
in the United States, in which it has been necessary
for the courts of justice to act upon this important subject.
But whenever they have arisen, the judges have uniformly
adhered to the established doctrines, even when executive
influence has exerted itself with no small zeal to procure
convictions.

. . . . .

§ 1796. The other part of the clause, requiring the testimony
of two witnesses to the same overt act, or a confession
in open court, to justify a conviction is founded upon
the same reasoning. A like provision exists in British jurisprudence,
founded upon the same great policy of protecting
men against false testimony, and unguarded
confessions, to their utter ruin. It has been well remarked,
that confessions are the weakest and most suspicious of all
testimony; ever liable to be obtained by artifice, false
hopes, promises of favour, or menaces; seldom remembered
accurately, or reported with due precision; and incapable,
in their nature, of being disproved by other negative
evidence. To which it may be added, that it is easy to
be forged, and the most difficult to guard against. An unprincipled
demagogue, or a corrupt courtier, might otherwise
hold the lives of the purest patriots in his hands,
without the means of proving the falsity of the charge, if
a secret confession, uncorroborated by other evidence,
would furnish a sufficient foundation and proof of guilt.
And wisely, also, has the constitution declined to suffer the
testimony of a single witness, however high, to be sufficient
to establish such a crime, which rouses against the
victim at once private honour and public hostility. There
must, as there should, be a concurrence of two witnesses
to the same overt, that is, open act of treason, who are
above all reasonable exception.